OP-ED: How Not to Raise the Age

ByAlexandra Cox |March 18, 2015

Compromises are often necessary in the political process, but not if they stand in the way of racial justice and fundamental fairness. In New York state, Gov. Andrew Cuomo has proposed laudable legislation this week.

Unfortunately, the specifics of the proposal embody significant and damaging compromises.

I write this as someone who has spent the last 12 years of my life as an advocate for teenagers charged with serious crimes. The vast majority of the individuals I have worked with have been charged with violent felonies.

I write also as a scholar and researcher. I believe that this proposed legislation will actually harm the very individuals it purports to help.

Reformers focus on the following: New York is one of just two states (the other is North Carolina) in which teenagers as young as 16 are automatically charged as adults for all offenses. The rest of the country has accepted the overwhelming scientific evidence that these are children, with the judgment and impulse control of children.

To address this issue, Gov. Cuomo established a commission to study the possibility of raising the age; this commission made recommendations in January. The governor has attached raise-the-age legislation, purportedly based on the commission’s recommendations, to a state budget bill.

Here’s what reformers overlook, and what the governor’s proposal does not address: Teenagers as young as 13 are automatically charged as adults if they are arrested for certain violent felonies — including murder, rape and (the great majority) robbery — under the state’s juvenile offender statute, which was passed in 1978. These young people can face up to life in prison. Cuomo’s bill doesn’t change any of this.

In drafting his version of a reform, Cuomo made significant concessions to state prosecutors, adding provisions — some not recommended by his commission — that would create significantly increased penalties for the young people consigned to the adult court system. Many of these young people have lengthy histories of neglect and abuse and mental illness.

Cuomo’s bill would enhance penalties for the teenagers prosecuted as adults despite the fact there is no evidence to show that the current system does not sufficiently punish these teens or protect public safety. One new provision says that a violent felony conviction handled as a youth offense (meaning, among other things, no criminal record) could be counted as the basis for more severe sentencing if the offender is later convicted of a violent felony.

In other words, it’s not on your record except when it is. Other provisions deny defense counsel the ability to move that a case be transferred to family court, and lengthen the potential sentences for teenagers charged as adults. These concessions actually make the law more punitive than it was before. They expose teenagers to the kinds of punitive interventions reform advocates claim to reject. These penalties will perpetuate the destructive practice of writing off some children as “dangerous” — lost causes, beyond the reach of rehabilitation.

Across the state, the vast majority of young people charged with violent felony offenses and sentenced to time in custody are black and Latino. As New York has closed its juvenile facilities and prisons, the disproportionate incarceration of black and brown teenagers has only risen. The “dangerous” may face a life behind bars, without access to medical and mental health care, adequate education and supportive services.

The rest, the “good kids” who are deemed capable of growing out of crime, may expect an array of programs in the community — including job training, mental health treatment, substance abuse treatment and therapy.

The youngsters charged with serious offenses are disproportionately black and brown; white kids, who are more likely to have the advantages of affluence and stable families, are often undercharged by prosecutors. So the consequences of Cuomo’s bill would fall hardest on children of color.

As I read the language of the bill, I think about the young men who I teach every week in a college course at a secure juvenile detention facility in New York. Some of them have multiple violent felony convictions on their record, but they do not seem to me incorrigible, as some would suggest. They are complex, contrite and curious individuals who hope to build a life for themselves beyond bars. These are teenagers who were charged as adults, and their return to their communities will be rendered far more difficult by their long years of incarceration and the stigma of an adult criminal conviction that will dog them for the rest of their lives. Others, those tried as youthful offenders, will re-enter the world with no conviction on their record, less debilitating time in detention and hope for a better life beyond the bars.

If the proposed legislation had been the law during the time these young men faced judgment, almost all of them would be looking at time in state prison after their time in the juvenile facility, they would be facing even lengthier sentences than they have now, and they would be condemned to the life of individuals seen as unworthy of mercy.

Legislation to raise the age of adult criminal responsibility is long overdue and brings New York into line with the rest of America. But it should treat all young people charged with crimes as the children they are, not single out some — the ones who have committed violent crimes — as incorrigible and beyond repair.

There is an alternative bill proposed by members of the New York State Assembly that offers a much more reasonable approach. Among other significant differences from Cuomo’s proposal, this bill allows for the presumption that all 16- and 17-year-olds charged with their first felony, regardless of the crime, should be tried as youthful offenders, not adults. It does not allow a crime committed as a youthful offender to be invoked as a reason to pile on longer sentences if someone is later convicted of another violent felony. It also allows the cases of 13- to 15-year-olds to be taken up in family court as juvenile delinquency proceedings, not in adult criminal court.

Raise the age, but do it right.

This commentary was written by Alexandra Cox for The Marshall Project, a nonprofit news organization that covers the U.S. criminal justice system.

Alexandra Cox, Ph.D., is an assistant professor of sociology at SUNY New Paltz, a former Soros Justice Fellow and a mitigation specialist who has worked at the Neighborhood Defender Service of Harlem and the Drug Policy Alliance.